Judge: Elaine W. Mandel, Case: 23SMCV03234, Date: 2025-04-17 Tentative Ruling

Case Number: 23SMCV03234    Hearing Date: April 17, 2025    Dept: P

Tentative Ruling

Abernethy v. J&J Prime Investment, Case no. 23SMCV03234

Hearing date April 17, 2025

Defendant Duk Ki Kwak dba Olympic Glass’ Motion for Leave to File Cross-Complaint

Plaintiffs C. and K. Abernethy sue defendants J&J Prime Investment, Inc., TAV Construction, Inc. and Joon Young Kim, principal of both entities (collectively “Kim defendants”), alleging negligence and breach of contract due to construction defects at plaintiffs’ residence.

Plaintiffs named 10 additional defendants, including moving party Duk Ki Kwak dba Olympic Glass (“Olympic”). All but three defendants, Olympic, Sharp Drywall and Plastering, Inc. (“Sharp”) and WS Tech, Inc. dba Sunny Roofing & Construction (“Sunny”), have been defaulted.

Olympic moves for leave to file a cross-complaint for indemnification against the Kim defendants and Sharp. The motion is unopposed.

Permission to allow a party to file a cross-complaint rests in the discretion of the trial court. Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701. A cross-complaint may be filed at any time "in the interests of justice.” However, after trial has been set, a party seeking to file a cross-complaint must obtain leave of court. Cal. Code Civ. Proc. §428.50(b).

Olympic seeks to name the defaulted Kim defendants via cross-complaint. Olympic was aware of the Kim defendants’ involvement but failed to cross-complain against them prior to default being entered. Decl. Andreasyan para. 4. Olympic argues its proposed cross-complaint for indemnity arises from the same set of facts and circumstances as the FAC, demonstrating good cause for leave to file. Sunny’s cross-complaint naming the Kim defendants was filed 5/28/24.

Olympic asserts it recently learned of Sharp’s identity. Decl. Andreasyan para. 5. The court recently granted a stipulation to set aside default against Sharp. See Stip. 4/7/25. Notions of justice and judicial economy weigh in favor of allowing Olympic to file its proposed cross-complaint, which arises from the same set of facts and circumstances as the FAC; good cause exists for leave to be granted. No opposition was filed.

Trial is set for 2/9/26. Allowing the filing of the proposed cross-complaint will not prejudice the proposed cross-defendants or otherwise delay trial. GRANTED. FAC to be filed within 10 court days.